Schneider, J.c.c. (temporarily assigned).
Defendants Vreeland and Alexander Hamilton Savings and Loan Association move for summary judgment. On March 11, 1963 plaintiffs entered into an agreement with defendants Luca and Birch Apartments, Inc. for the purchase of certain property and house in Upper Saddle River, New Jersey. The plaintiffs paid $3,800 as part of purchase price at time of contract. The contract provided for conveyance on April 1, 1963. The contract was recorded in the Bergen County Clerk's Office on September 26, 1963 in Deed Book 4551, at page 490. It should be noted that this date is long after the time fixed for closing of title.
Plaintiffs contend in their pleadings that defendants failed to complete the building and could not deliver good title at the time specified in the contract. On September 24, 1963 defendants Luca gave notice that time was of the essence, with closing to take place on October 4, 1963. Plaintiffs contend that on that date they were ready to close title but defendants Luca failed to have a mortgage of record cancelled, to remove a mechanic's notice of intention, and in other ways were unable to perform, and the complaint sets forth numerous items of incompleted or improper work. Plaintiffs claim defendants were unable to perform and seek return of the deposit.
On November 29, 1963 the Lucas conveyed the property to defendant James J. Vreeland, and the deed was recorded January 3, 1964 in the Bergen County Clerk's Office in Deed Book 4589, at page 196. James Vreeland is president of Birch Apartments, Inc., and the conveyance to him was with knowledge of the entire background of this case. Plaintiffs seek to impress a vendee's lien upon the property for the amount of the deposit. They sue Alexander Hamilton Savings & Loan, contending that the Lucas executed a mortgage
on November 29, 1963 on said premises to that institution, recorded December 4, 1963 in Mortgage Book 4039, page 471. They contend that their vendee's lien comes ahead of this mortgage.
These latter defendants seek summary judgment and rely upon the statute R.S. 46:21-3 as basis for their right to seek judgment. Vreeland in his affidavit contends he bought the property, and assumed the mortgage in question and gave up an interest in other property owned jointly with Luca worth $10,000. He presently resides in the property in question.
Suit was instituted in June 1964.
R.S. 46:21-3 provides as follows:
"46:21-3. Recorded agreements for sale or purchase of real estate void as against subsequent judgment creditors, etc., unless sued on within specified times.
Every hereafter recorded agreement for the sale or purchase of real estate situate in this state shall be absolutely void as against subsequent judgment creditors of the vendor and as against subsequent purchasers and mortgagees for value of such real estate, unless the vendee, his heirs, executors, administrators or assigns, shall commence an action for the specific performance of such agreement, or for its rescission, or for the violation of any of the covenants therein contained, and shall file a notice of the pendency of such action in the office of the county recording officer of the county in which the affected real estate is situate, setting forth the title of the cause and the general object thereof, together with a description of the real estate to be affected thereby, (a) within three months after the date fixed in such agreement for its consummation, or (b) if no date shall be fixed in such agreement for its consummation, within three months after the date of such agreement, or (c) if the consummation of such agreement shall be extended by the parties thereto, before the date fixed therein for its consummation, beyond the date so fixed, and such extension shall be duly acknowledged and recorded as agreements for the sale of land are required to be acknowledged and recorded in order to give them the effect of notice to subsequent judgment creditors, purchasers and mortgagees, within three months after the date fixed in such extension for the consummation of such agreement, or (d) upon the death of the vendor or vendors or one or more of them within any such periods of three months, within three months after such death.
If the plaintiff or complainant in any such action does not take steps to prosecute the same within six months after the filing of such notice, the chancellor or court in which such action is commenced may, upon ...